Plaintiffs
Rosa Espinoza (“Rosa”), [1] Erika Espinoza
(“Erika”) and Ricardo Espinoza
(“Ricardo”), through their counsel, filed suit
against Defendant Officers Richard Burdett, Joseph Cassidy,
Jason O'Hara, Joseph Gruben, Ken Kiklas, Antonio Tucker
and Sergeant Sean Talbot (collectively “the
Officers”), and the Village of Bolingbrook pursuant to
42 U.S.C. § 1983 alleging damages as a result of the
Officers' response to an emergency situation at the
Espinoza's household. Ricardo's excessive force
claim, [2] and Rosa's state law claim on behalf
of her daughter Natalie for intentional infliction of
emotional distress (Count V) are no longer before the
Court.[3] Remaining are Rosa's Fourth Amendment
warrantless search claim (Count I), Rosa and Erika's
false arrest claims (Counts II and IV), Rosa's excessive
force claim (Count III), and Rosa's state indemnity claim
on behalf of her daughter Natalie against the Village of
Bolingbrook (Count VI). (Dkt. 76, at 4-9.) The Officers now
move for summary judgment on Rosa's first claim alleging
a violation of the Fourth Amendment for a warrantless search
of her home against Sergeant Talbot and Officers O'Hara,
Gruben, Kiklas, and Tucker.[4] For the following reasons, the
Court denies the Officers' Motion for Summary Judgment.
(Dkt. 79.)

BACKGROUND

The
parties do not dispute the following facts unless otherwise
noted.[5]

I.
Events prior to the police
search/”sweep”

On
December 24, 2014, Juan Espinoza Senior (“Juan
Senior”) and his wife Rosa hosted a family Christmas
party at their home in Bolingbrook, Illinois. (Def. SOF,
¶ 1.)[6] Family members attending the party
included the Espinoza children: Erika, Ricardo, Juan
Espinoza, Jr. (“Juan Junior”), Natalie Espinoza
(“Natalie”), and Rosa's sister, Reyna
Markiewicz (“Reyna”), with her two adult
daughters Jessica Markiewicz (“Jessica”) and
Jennifer Markiewicz (“Jennifer”). (Id.
¶¶ 3-4.) At some point in the evening, Ricardo, who
gets aggressive when he drinks, and Juan Junior - both of
whom started drinking around 7:30 or 8:00 p.m. - began
wrestling, which turned into throwing punches, and ultimately
turned into a serious altercation. (Id. ¶¶
8-9, 11-14.) The fight aroused fear among other family
members causing Erika, Natalie, Jennifer and Jessica to lock
themselves into an upstairs bedroom out of fear for their
safety. (Id. ¶¶ 16-19.) Juan Senior also
became involved in the skirmish while attempting to break up
the fight between his two sons. (Id. ¶ 21.)

Eventually,
one of the family members called 911 during which a
“lengthy” conversation between Erika and the
911-dispatcher captured the chaos and severity of the
altercation. (Id. ¶¶ 20-22.) Officers
Joseph Cassidy and Richard Burdett were the first police
officers to arrive on the scene, followed by Sergeant Talbot,
and then Officers Stepien, Kiklas, O'Hara, Tucker and
Gruben shortly thereafter in part due to “scream[s] for
help over the radio, [and] yell[s] for more people” to
respond. (Id. ¶¶ 23-25.) Shortly after
arriving, the police took Ricardo, Juan Senior and Juan
Junior into custody. (Id.)

II.
The “protective sweep” or search of the
Espinoza's home

After
securing Ricardo, Juan Senior and Juan Junior, several
officers conducted a protective sweep of the home because
“they did not know what happened before they arrived on
the scene and they wanted to make sure the house was safe and
no one else in the house was injured or
hurt.”[7] (Id. ¶ 26.) Officers
O'Hara and Tucker cleared the second floor of the
residence, which included sending Natalie and another
juvenile back downstairs to the first floor. (Pl. SOF,
¶¶ 1-3.) During the events on the second floor,
Officer Stepien had the locked door to the basement
“pinned” or guarded, so that no person could
enter or exit the basement. (Id. ¶¶ 7-9.)

Upon
returning from the second floor, Officer Tucker used a
utility knife to unlock the basement door and proceeded down
into the basement.[8] Officer Tucker spent five minutes looking
around in the unfinished basement, which included a Bedroom
set-up with a mattress and a TV. (Id. ¶6; Def.
Resp., ¶ 13.)[9] At some point in time Officers Tucker,
Gruben, Stepien, Kiklas and Sergeant Talbot were also in the
basement. (Def. Resp. ¶ 10.) During Tucker's time in
the basement, he searched under the bed and also discovered a
shoebox and a bag containing narcotics near a
sofa.[10] Tucker returned to the first floor and
informed Sergeant Talbot what he observed, which prompted
Talbot to head into the basement to look around as well. (Pl.
SOF, ¶ 16.) Ultimately Juan Senior and Juan Junior both
pled guilty to battery, and Ricardo pled guilty to resisting
a police officer.[11] (Def. SOF, ¶¶ 50-52.)

LEGAL
STANDARD

Under
Rule 56(c) of the Federal Rules of Civil Procedure
“[t]he court shall grant summary judgment if the movant
shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56(a). Whether a fact is material
depends on the underlying substantive law. Carroll v.
Lynch, 698 F.3d 561, 564 (7th Cir. 2012) (citations
omitted). “A ‘genuine issue' exists with
respect to any such material fact, and summary judgment is
therefore inappropriate, when ‘the evidence is such
that a reasonable jury could return a verdict for the
nonmoving party.'” Bunn v. Khoury Enters.,
Inc., 753 F.3d 676, 681 (7th Cir. 2014 (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986)). On the other hand, “where the factual record
taken as a whole could not lead a rational trier of
fact to find for the nonmoving party, there is nothing for a
jury to do.” Bunn, 753 F.3d at 682 (citing
Anderson, 477 U.S. at 255); see also Kvapil v.
Chippewa County, Wis., 752 F.3d 708, 712 (7th Cir.
2014).

DISCUSSION

The
Officers move for summary judgment on Rosa's Fourth
Amendment unlawful search claim (Count I), arguing that the
search conducted after the arrest of Ricardo and Juan Junior
qualified as an exception to the warrant requirement as a
protective sweep for safety purposes. In the alternative, the
Officers assert that even if the Court finds the search went
beyond the scope of a protective sweep it was a lawful search
incident to arrest. The Court needn't delve into this
analytical distinction between a protective sweep and a
lawful search ...

Our website includes the first part of the main text of the court's opinion.
To read the entire case, you must purchase the decision for download. With purchase,
you also receive any available docket numbers, case citations or footnotes, dissents
and concurrences that accompany the decision.
Docket numbers and/or citations allow you to research a case further or to use a case in a
legal proceeding. Footnotes (if any) include details of the court's decision. If the document contains a simple affirmation or denial without discussion,
there may not be additional text.

Buy This Entire Record For
$7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.